The Reporters Committee for Freedom of the Press submitted a FOIA request to the FBI for records concerning the FBI's practice of impersonating members of the media, specifically documentary filmmakers. The FBI divided the request in to four separate requests. For one request, it issued a Glomar response, neither confirming nor denying the existence of records, based on Exemption 7(E) (investigative methods and techniques). In response to the second request, the agency told the Reporters Committee it had not sufficiently described the records sought to allow the agency to conduct a search. As to the third request, the agency told the Reporters Committee that responsive records were being withheld under Exemption 7(A) (interference with ongoing investigation or proceeding). As to the fourth request, the agency indicated that it fell within the exception for unusual circumstances and would take longer to process as a result. The Reporters Committee filed an administrative appeal address all the requests. The Office of Information Policy acknowledged receipt of the appeal, but told the Reporters Committee it would not consider the delay appeal because no adverse determination had been made. After hearing nothing further from OIP, the Reporters Committee filed suit.Complaint issues: Litigation - Attorney's fees, Failure to respond within statutory time limit, Fee Category - Media or Educational, Public Interest Fee Waiver

FOIA Project Annotation: Judge Rudolph Contreras has ruled that the FBI improperly invoked a Glomar response neither confirming nor denying the existence of records in response to the Reporters Committee's request pertaining to the agency's impersonation of journalists as an investigatory technique. After the online newspaper The Intercept wrote in detail about "Operation Longbow" in which the FBI had impersonated a documentary filmmaker to get access to Cliven Bundy during his 2014 armed stand-off with law enforcement agents, the Reporters Committee submitted a FOIA request for records about Operation Longbow and the agency's policy for impersonating documentary filmmakers and film crews. The agency broke up the Reporters Committee's request into multiple parts, withholding some records under Exemption 7(A) (interference with ongoing investigation or proceeding). The Reporters Committee filed an administrative appeal of the FBI's response to the entire request, but then filed suit after the agency failed to respond. In court, the FBI issued a Glomar response, claiming that any information about its use of impersonation of documentary filmmakers as an investigative technique was categorically protected by Exemption 7(E) (investigative methods and techniques). Contreras first addressed whether the records had been compiled for law enforcement purposes. Finding that the records did qualify, Contreras pointed out that "the FBI is a law enforcement agency. And the parties do not dispute that the impersonation of documentary filmmakers and film crews is a law enforcement technique. The Court agrees with the FBI's justification that any investigative record related to the use of the technique would necessarily have been compiled for a law enforcement purpose." But, having reached the conclusion that the records qualified for the threshold of what constituted a law enforcement record, Contreras observed that "Exemption 7(E) does not justify the FBI's refusal to confirm or deny the existence or nonexistence of responsive records." Contreras explained that in the D.C. Circuit an agency was required to show that the law-enforcement techniques were generally unknown to the public and that disclosure of the techniques would risk circumvention of the law. However, the FBI urged Contreras to adopt the Second Circuit's interpretation that Exemption 7(E) categorically protected records that would reveal law enforcement techniques not known to the public regardless of the risk of harm. Noting that the D.C. Circuit itself had recognized the conflict with the Second Circuit in PEER v. International Boundary Water Commission, 740 F.3d 195 (D.C. Cir. 2014), Contreras indicated that "the Court would be hard-pressed to adopt the Second Circuit's reading of Exemption 7(E) in this case. . .given that this Court is bound by D.C. Circuit precedent." Even though it acknowledged that impersonation of journalists was a publicly known technique, the FBI suggested that impersonation of documentary filmmakers was not publicly known. The Reporters Committee argued that documentary filmmakers were usually included in the First Amendment journalists' privilege. Contreras agreed, noting that "at a minimum, Defendants appear to recognize that a least some documentary film workers are members of the news media. This leaves unclear how the impersonation of documentary filmmakers as a whole can be a secret technique when the impersonation of news media is not." The FBI asserted that the impersonation of documentary filmmakers was not well known because there was only one public acknowledgement of its use during the Bundy investigation. But Contreras pointed out that "but that is all that is needed in order for the technique itself to become known. The Court agrees with RCFP that it is implausible for Defendants to assert the technique is secret simply because it has only been acknowledged to have been used in one instance. What other situations the technique may have been used in is still a secret, but the fact that it is a technique law enforcement uses is not, and Defendants accordingly cannot justify the FBI's Glomar response on the ground that revealing whether documents exist would disclose an unknown law enforcement technique." Contreras found that the FBI had failed to show why disclosing the existence of the technique of impersonating documentary filmmakers would risk circumvention of the law. He observed that "simply revealing that the FBI has any such records would not allow criminals to discern whether or not the FBI has used the technique to investigate their own, specific criminal activity, because all a criminal would know is the existence of any unquantified number of records. For the same reason, acknowledging the existence of records, without any indication about the number of type of records found, would not provide any information about the frequency of the technique's use."
Issues: Determination - Glomar response, Exemption 7(E) - Unknown to public

RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 08/24/2017. (Townsend, KatieLynn) (Entered: 08/29/2017)

2017-08-29

5

RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 8/24/2017. Answer due for ALL FEDERAL DEFENDANTS by 9/23/2017. (Townsend, KatieLynn) (Entered: 08/29/2017)

2017-08-29

6

RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. FEDERAL BUREAU OF INVESTIGATION served on 8/24/2017 (Townsend, KatieLynn) (Entered: 08/29/2017)

2017-08-29

7

RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. DEPARTMENT OF JUSTICE served on 8/24/2017 (Townsend, KatieLynn) (Entered: 08/29/2017)

MINUTE ORDER: It is hereby ORDERED that the parties shall meet, confer, and submit a proposed briefing schedule on or before October 10, 2017. SO ORDERED. Signed by Judge Rudolph Contreras on 09/25/2017. (lcrc1) (Entered: 09/25/2017)

MINUTE ORDER: Upon consideration of 9 the parties' Joint Status Report, it is hereby ORDERED that the parties shall have until November 22, 2017 to meet, confer, and submit their proposed briefing schedule. SO ORDERED. Signed by Judge Rudolph Contreras on 10/10/2017. (lcrc1) (Entered: 10/10/2017)

MINUTE ORDER: Upon consideration of 10 the parties' Joint Status Report, it is hereby ORDERED that the parties shall submit another joint status report on or before January 22, 2018. SO ORDERED. Signed by Judge Rudolph Contreras on 11/22/2017. (lcrc1) (Entered: 11/22/2017)

2018-01-17

11

NOTICE of Appearance by Jennifer Anne Nelson on behalf of REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS (Nelson, Jennifer) (Entered: 01/17/2018)

MINUTE ORDER denying as moot 12 Unopposed Motion to Stay Due to Lapse of Appropriations. SO ORDERED. Signed by Judge Rudolph Contreras on 01/23/2018. (lcrc1) (Entered: 01/23/2018)

2018-01-23

MINUTE ORDER: Upon consideration of 13 the parties' Joint Status Report, it is hereby ORDERED that the parties submit a further joint status report on or before March 8, 2018. SO ORDERED. Signed by Judge Rudolph Contreras on 01/23/2018. (lcrc1) (Entered: 01/23/2018)

MINUTE ORDER: Upon consideration of 14 the parties' Joint Status Report, it is hereby ORDERED that the parties shall submit a further joint status report on or before April 9, 2018. SO ORDERED. Signed by Judge Rudolph Contreras on 03/08/2018. (lcrc1) (Entered: 03/08/2018)

Consent MOTION for Extension of Time to Submit a Joint Status Report by DEPARTMENT OF JUSTICE, FEDERAL BUREAU OF INVESTIGATION (Attachments: # 1 Text of Proposed Order)(Walker, Johnny) (Entered: 04/09/2018)

2018-04-09

MINUTE ORDER granting 15 Consent Motion for Extension of Time: It is hereby ORDERED that the parties shall file the joint status report on or before April 17, 2018. SO ORDERED. Signed by Judge Rudolph Contreras on 04/09/2018. (lcrc1) (Entered: 04/09/2018)

MINUTE ORDER: Upon consideration of 16 the parties' Joint Status Report, it is hereby ORDERED that the parties meet, confer, and submit a proposed schedule for briefing on the FBI's Glomar responses under Exemption 7(E), as well as on any other issue that the parties assert is ready for the Court's resolution, on or before May 8, 2018. SO ORDERED. Signed by Judge Rudolph Contreras on 04/24/2018. (lcrc1) (Entered: 04/24/2018)

MINUTE ORDER granting 17 the parties' Joint Motion for Scheduling Order on Defendants' Glomar Responses: It is hereby ORDERED that the following schedule shall govern briefing on the Defendants' Glomar responses under Exemption 7(E): Defendants' motion for summary judgment will be due by July 9, 2018; Plaintiff's opposition to Defendants' motion and any cross-motion for summary judgment will be due by August 17, 2018; Defendants' reply in support of their motion for summary judgment and opposition to Plaintiff's cross-motion if a cross-motion is filed will be due by September 14, 2018; and Plaintiff's reply in support of its cross-motion if a cross-motion is filed will be due by October 5, 2018. SO ORDERED. Signed by Judge Rudolph Contreras on 05/08/2018. (lcrc1) (Entered: 05/08/2018)

2018-05-11

Set/Reset Deadlines: Cross Motions due by 8/17/2018. Response to Cross Motions due by 9/14/2018. Reply to Cross Motions due by 10/5/2018. Summary Judgment motions due by 7/9/2018. Response to Motion for Summary Judgment due by 8/17/2018. Reply to Motion for Summary Judgment due by 9/14/2018. (tj) (Entered: 05/11/2018)

2018-07-05

18

Consent MOTION for Extension of Time to Move for Partial Summary Judgment by DEPARTMENT OF JUSTICE, FEDERAL BUREAU OF INVESTIGATION (Attachments: # 1 Text of Proposed Order)(Walker, Johnny) (Entered: 07/05/2018)

2018-07-06

MINUTE ORDER granting 18 Consent Motion for Extension of Time: It is hereby ORDERED that the following schedule shall govern briefing on Defendants' Glomar responses under Exemption 7(E): Defendants' motion for summary judgment will be due by July 23, 2018; Plaintiff's opposition to Defendants' motion and any cross-motion for summary judgment will be due by August 31, 2018; Defendants' reply in support of their motion for summary judgment and opposition to Plaintiff's cross-motion if a cross-motion is filed will be due by September 28, 2018; and Plaintiff's reply in support of its cross-motion if a cross-motion is filed will be due by October 19, 2018. SO ORDERED. Signed by Judge Rudolph Contreras on 07/06/2018. (lcrc1) (Entered: 07/06/2018)

2018-07-06

Set/Reset Deadlines: Summary Judgment motion due by 7/23/2018. Plaintiff's Response to Motion for Summary Judgment/Cross Motion due by 8/31/2018. Reply to Motion for Summary Judgment due by 9/28/2018. Reply to Cross Motion due by 10/19/2018. (hs) (Entered: 07/06/2018)

Consent MOTION for Extension of Time to File Opposition to Defendants' Partial Motion for Summary Judgment and Move for Partial Summary Judgment by REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS (Attachments: # 1 Text of Proposed Order)(Townsend, KatieLynn) (Entered: 08/23/2018)

2018-08-23

MINUTE ORDER granting 20 Plaintiff's Consent Motion for Extension of Time: It is hereby ORDERED that the following schedule shall govern the remaining briefing on Defendants' Glomar responses under Exemption 7(E): Plaintiff's opposition to Defendants' motion for partial summary judgment and Plaintiff's motion for partial summary judgment will be due by September 14, 2018; Defendants' reply in support of their motion for partial summary judgment and opposition to Plaintiff's cross-motion will be due by October 12, 2018; and Plaintiff's reply in support of its cross-motion will be due by November 2, 2018. SO ORDERED. Signed by Judge Rudolph Contreras on 08/23/2018. (lcrc1) (Entered: 08/23/2018)

2018-08-24

Set/Reset Deadlines: Reply to Cross Motions due by 11/2/2018. Motions due by 9/14/2018. Response to Motion for Summary Judgment due by 9/14/2018. Reply to Motion for Summary Judgment due by 10/12/2018. (tj) (Entered: 08/24/2018)

2018-09-14

21

Cross MOTION for Partial Summary Judgment by REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS (Attachments: # 1 Memorandum of Law in Opposition to Defendants' Motion for Partial Summary Judgment and In Support of Plaintiff's Cross-Motion for Partial Summary Judgment, # 2 Plaintiff's Combined Statement of Material Facts as to Which there is no Genuine Issue and Response to Defendants' Statement of Material Facts, # 3 Declaration of Katie Townsend, # 4 Declaration of Abby Ellis, # 5 Declaration of David G Byars, # 6 Text of Proposed Order)(Townsend, KatieLynn) (Entered: 09/14/2018)

2018-09-14

22

NOTICE of Filing by REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS (Townsend, KatieLynn) (Entered: 09/14/2018)

MINUTE ORDER: It is hereby ORDERED that the parties shall meet, confer, and submit a joint status report including a proposal or proposals to govern further proceedings on or before March 18, 2019. SO ORDERED. Signed by Judge Rudolph Contreras on 3/4/19. (lcrc1) (Entered: 03/04/2019)

MINUTE ORDER: Upon consideration of the parties' 30 Joint Status Report, it is hereby ORDERED that the parties shall file another joint status report on or before April 17, 2019. SO ORDERED. Signed by Judge Rudolph Contreras on 3/19/19. (lcrc1) (Entered: 03/19/2019)

MINUTE ORDER: Upon consideration of the parties' 31 Joint Status Report, it is hereby ORDERED that the parties shall file another joint status report on or before May 17, 2019. SO ORDERED. Signed by Judge Rudolph Contreras on 4/17/19. (lcrc1) (Entered: 04/17/2019)

MINUTE ORDER: Upon consideration of the parties' 32 Joint Status Report, it is hereby ORDERED that the parties shall file another joint status report on or before June 17, 2019. SO ORDERED. Signed by Judge Rudolph Contreras on 5/17/19. (lcrc1) (Entered: 05/17/2019)